Monday, 25 May 2015

The EU Referendum: Who should vote?

The
question of who votes in what elections is usually thought to be a rather nerdy
and obscure question, and it doesn’t often capture the public imagination. So
it was quite something to see an
announcement from Number 10 in advance of the publication of the EU Referendum
Bill telling us what the franchise is going to be in the referendum trending as
‘most popular’ and as a ‘top story’ on the BBC News website early in the
morning of the late May Bank Holiday 2015. The announcement seems to have been made
to forestall further debate on the franchise, which had been gaining quite a
lot of traction on the airwaves, in the newspapers and in social media.

According
to the announcement, the Referendum Bill will use a modified Westminster
franchise. So it will largely use the franchise for UK national elections –
i.e. resident UK, Irish and Commonwealth citizens, plus UK citizens who have
not been resident outside the UK for more than 15 years, but it will import two
additional elements from the franchise for European Parliament elections:
members of the House of Lords will be able to vote, plus those who are resident
in Gibraltar. It would not include three groups of possible voters:

·UK citizens resident abroad for more than 15 years, no matter how long they have been resident outside the UK;

·EU citizens who are able to vote in the UK in
European Parliament and local elections (and in the elections for the devolved
assemblies and Parliaments) on the basis of residence; and

·16-17 year olds (presumably in the above
categories as well as those who are resident UK citizens)

The
issue has become politicised in the UK, in part because the first group felt
they had been the recipients of a firm
pledge from the Conservative party that the current 15 year bar on
expatriate voting would be removed (this was later repeated in the 2015
Conservative Party manifesto: see p 49), and the latter two groups both voted
in the September 2015 referendum on Scottish independence, with the third group
also set to vote in future Scottish elections (including the one to be held in
2016), pursuant to an anticipated Westminster devolution of power to the
Scottish Parliament to set its own franchise.

All
debates and decisions about the franchise are a mixture of principle and
pragmatism – especially in the UK, where the starting point is a rather mixed
bag of voting rights. So unlike the vast majority of states worldwide, the UK
does not limit its voting rights in national elections to citizens alone. On
the contrary, ever since the current boundaries of the UK as we know it were
carved out as a result of the end of empire and the dissolution of the union
with Ireland, those who had been ‘subjects’ of the Crown found themselves
continuing to enjoy the franchise in the modern state, even if this sits
uncomfortably with a notion of a national citizenship which draws sharp
boundaries between those inside and outside the circle of inclusion.

That
said, the inclusion of at least some external voters in the UK franchise since
1980 has seen the UK aligning itself with a more general international
trend towards allowing non-resident citizens to vote in elections without
going as far as most states now do. So in 2014 the European Commission suggested
that the UK, along with four other EU Member States, should reconsider
its current policies and enact a more generous enfranchisement of external
voters, especially those resident elsewhere in the EU. This was to avoid the
situation whereby this group of voters might find themselves unable to vote in
any national elections (e.g. if they have been abroad more than fifteen years, but
yet did not qualify for citizenship in their host state, or for various reasons
did not want to acquire that citizenship, e.g. if that meant giving up UK
citizenship).

The
UK also has an unusual approach to the enfranchisement of non-UK EU citizens on
the basis of residence, which is only required under EU law for local and
European Parliament elections, but which is extended – as a matter of UK law –
also to elections to the devolved assemblies. Not only did EU citizens vote in
the Scottish independence referendum, but they have also voted in all of the
referendums that preceded the enactment of devolution arrangements, with the
exception of the referendum in Northern Ireland which was conducted on the
basis of the Westminster franchise. No other EU Member State has enfranchised
non-national EU citizens in this manner; other states continue to insist that
longterm resident EU citizens who want to vote in most regional and national
elections must themselves become citizens by naturalisation, with all the
difficulties that this may entail (including in some cases the loss of their
original citizenship). A wider enfranchisement of EU citizens on the basis of
residence has long been debated,
but a European Citizens’ Initiative
did not achieve much political traction across the EU.

And
while the initial proposal to enfranchise 16-17 year olds to vote in the
Scottish independence referendum was viewed with a degree of scepticism in some
quarters, perceptions have changed substantially on this issue in Scotland. The
enfranchisement is generally thought not
to have changed the result in any substantial way (16-17 year olds seem to
have had higher turnout figures than their immediate seniors, the 18-24 year
old age group, but probably a slightly greater propensity to vote no). But the
principle of enfranchising young adults in this way, and of ensuring that they
receive opportunities, within the framework of educational processes in
particular, of understanding the significance of the choices they are being
asked to make has been part of a ongoing politicisation process in Scotland
which receives wide approval, whatever position people take on the question of
an independent Scotland.

The
predictable result of all of this is confusion, as there is no coherent
‘membership model’ to which the UK adheres in the matter of elections or
referendums. The Scottish referendum franchise, which included a wide range of
persons resident in Scotland but excluded persons born in Scotland but now
resident elsewhere in the UK or outside the UK is a case in point. The latter
group would have become Scottish citizens in the event of a Yes vote (as well
as remaining, we can assume, UK citizens). The choice was widely defended as a reasonable
compromise on which to conduct the vote. Despite rumblings from ‘expat Scots’,
threatened litigation to challenge the franchise did not ensue – and for good
reason. For that referendum, as for the EU referendum, the setting of the
franchise is a matter for the legislation enacted to allow the referendum to
take place. There are no formal constitutional provisions on referendums in the
UK. And there are, in my view, no provisions of EU law or international human
rights law that would preclude the legislature having a free choice across the
range of existing electoral rolls, including those for local, devolved,
Westminster and European Parliament elections. This means that the franchise
can be the subject of political horse-trading.

Those
proposing any particular franchise for any given electoral or referendum event
will be aware of the fact that the roll chosen might
be very likely to affect the outcome. In excluding EU citizens, Prime
Minister David Cameron is said to be bowing
to eurosceptics in his own party. Equally, those who are campaigning for
the inclusion of EU citizens may be doing so not just because of the principle
that they have been resident and paying taxes for a long time, and that they
will be profoundly affected as
regards issues of personal status by the effects of the decision, but also
because they may have an inkling that this group would vote in favour of the UK
staying in if given the chance. That said, it is worth pointing out that
registration and participation levels amongst non-national EU citizens resident
in the UK in the elections they can vote in is lower than amongst UK citizens,
even though there are clearly some groups to whom these rights to vote – and
the possibility of participating in the EU referendum – matter intensely, for
obvious reasons. Even if they participated at the same rate as UK citizens,
they would be likely to account for less than 5%
of the overall voting roll. In any event, as has been pointed out, they retain the option of acquiring UK citizenship (between now and the date of the referendum, indeed) if they want to vote. External voters also continue to prove a stubbornly
hard to reach group, with much lower levels of participation during the
years when they are enfranchised. It seems likely that they too, if resident in
the EU at least, might be inclined to vote in favour of continued membership,
in order to protect their own status, although no one can be sure about that
point. Resident
16-17 year olds are, by contrast, not so hard to reach, but some people
continue to harbour doubts about whether it is appropriate that they should
vote, even though there is a modest international trend to lower the age of
franchise, as well as the positive
experience of the Scotland experiment on which to draw. Moreover, the
Scotland experience seemed to indicate that their overall voting choice might
not differ so greatly from that of the ‘mainstream’ voting population.

There
are no right or wrong answers on the question of the scope of the franchise.
The uncertainties around this question are, however, accentuated by the
uncertainties about exactly what we might be voting on, and when. At the time
when the Scottish referendum franchise was set, the terms of the vote were
pretty plain, although obviously there were certain clarifications (e.g. on
currency matters most particularly) during the course of the campaign. The EU
vote is quite different, because of the uncertainties (and secrecy) of the
diplomacy effort that the UK government is now purporting to lead, in order to
seek those adjustments to the terms of the UK’s membership that the government
claims it has an electoral mandate to negotiate, given the terms of its General
Election victory in May 2015. The possible ‘adjustments’ are profoundly unclear,
especially as regards the legal form that they might take, and of course there
are quite a few people in the UK who are sceptical about whether these
negotiations matter at all. Plenty will vote “in”, regardless of the Cameron
‘deal’. Plenty will vote “out”. The ‘deal’, for many observers, is simply a
process of political choreography to allow David Cameron and George Osborne to
avoid the Conservative Party falling apart over its divisions on the European
Union. It certainly isn’t about something which many EU citizens, right across
the EU might want to participate in if given a chance, namely a thorough transnational reconsideration of whether
the legal and political framework for economic integration across Europe is now
fit for purpose as we approach the middle decades of the twenty first century.
To that extent, non-UK EU citizens resident in the UK might end up feeling
doubly excluded if they do not have the vote: namely not only can they not
participate in whatever referendum there is, but also they may well feel that
the referendum that is taking place does not itself really get to the nub of
the issues as far as they are concerned.

10 comments:

Not eligible to vote are "UK citizens resident abroad (or perhaps in the EU only), no matter how long they have been resident outside the UK"..... i.e. British citizens, resident in another EU country, and who will be most affected by a Brexit, do not get a voice but Irish citizens resident in the UK do. F*cking sterling piece of logic there. Thanks, Dave.

I was thinking the same. Myself, UK national living in France and excluded from voting in the referendum,not knowing whether I can continue to work in a few years time, maybe having to sell my house and move to the UK. Ahhh democracy, don't you love it. If that happens guess which party I *won't* be voting for... yes Dave, you might end up with a million very angry people voting against you and removing your majority for a generation.

Good question, Nicusha. This won't be clear until Cameron defines his requests in more detail and other Member States respond, but for now I had a look at this issue in a recent blog post: http://eulawanalysis.blogspot.co.uk/2015/05/is-it-possible-to-reform-eu-without.htmlAlso on the EU migration aspects, from last year: http://eulawanalysis.blogspot.co.uk/2014/11/the-nine-labours-of-cameron-analysis-of.html

I would like to ask you to clear something of an ongoing dispute. Some people are claiming that after 31st March 2017 the UK could not leave the EU by invoking article 50, as on that date we become fully integrated. Can you clarify this dispute?

Thanks, I thought that was the case. I have one more question which is a matter of opinion. M. Portillo and several others have suggested that if UK votes to stay in, then eventually their will be closer union and we will likely have to adopt the Euro. It is widely accepted that the EUs' goal is for a type of United States Of Europe, and it would seem that they would not make any exception for one member state no matter how important they were. What is your opinion on this?

The Out side has some valid criticism of the EU. But this particular argument is the worst form of scaremongering. The UK has an airtight opt-out from the single currency, and UK law requires a referendum before we join. Equally there would have to be a referendum before any Treaty amendment transferring power to the EU. The EU has never tried to enforce the obligation to join the euro against Sweden, which unlike the UK has an obligation to join. The argument that we will be tricked into joining the euro goes back to William Hague in the 2001 election. It was not true then and it's not true now.